A commentary on the case of Abdelbaset al-Megrahi, convicted of the murder of 270 people in the Pan Am 103 disaster.

Tuesday, 5 May 2015

Libya's prisoner transfer request

[On this date in 2009, while Abdelbaset Megrahi’s second appeal was ongoing, the Libyan Government submitted to the Scottish Government an application for his transfer to Libya under the Prisoner Transfer Agreement between Libya and the United Kingdom that had come into force on 29 April 2009. A report on the BBC News website can be read here.

What follows is what I wrote on this blog about the law applicable to the transfer of Megrahi back to Libya on the day the PTA was ratified:]

Prisoner transfer: the relevant legal provisions

The relevant provisions of the prisoner transfer agreement between the United Kingdom and Libya which was ratified today are as follows:

“Art 2(2): A person who has received a liberty depriving sentence in the territory of one Party may be transferred to the territory of the other Party, in order to complete the sentence imposed upon him. To that end he may express his interest to the transferring State or to the receiving State in being transferred under this Treaty.

Art 2(3): Transfer may be requested either by the transferring State or the receiving State.

Art 3: A prisoner may be transferred under this Treaty only if the following criteria are met: (...)

(b) the judgment is final and no other criminal proceedings relating to the offence ... are pending in the transferring State; (...)

(e) the transferring and receiving States agree to the transfer.”

The relevant UK legislation, which the Scottish Government would have to apply in the case of Mr Megrahi, used to be the Repatriation of Prisoners Act 1984 (c 47), section 1 of which provided:

“(1) Subject to the following provisions of this section, where—

(a) the United Kingdom is a party to international arrangements providing for the transfer between the United Kingdom and a country of territory outside the British Islands of persons to whom subsection (7) below applies, and

(b) the relevant Minister [defined, in the case of prisoners in Scotland as "the Scottish Ministers"] and the appropriate authority of that country or territory have each agreed to the transfer under those arrangements of a particular person (in this Act referred to as “the prisoner”), and

(c) the prisoner has consented to being transferred in accordance with those arrangements

the relevant Minister shall issue a warrant providing for the transfer of the prisoner into or out of the United Kingdom.”

This provision requiring the prisoner's consent was removed in 2006, but it is abundantly clear that, irrespective of the wishes of the UK, Scottish and Libyan authorities, Megrahi cannot in fact be transferred back to Libya without his consent since he cannot be transferred without his current appeal being abandoned and no-one but Megrahi can instruct the abandonment of that appeal.

The Libyan Government's application for Megrahi's transfer was refused by Kenny MacAskill. It was Megrahi's own application for compassionate release that was granted. It is not a condition for compassionate release that there be no pending proceedings.

For anyone applying any rationality into the acts of politicians _and_ believing in the safety of Megrahi's conviction, the release of him must be a complete mystery.

Freeing Megrahi was bound to be dynamite, profoundly unpopular, not the least among our American friends. What politician in his right mind would even think of getting involved? Did McAskill maybe suddenly, one Sunday afternoon, feel so sorry for a man convicted of murdering 270 people? How nice of him to put his career at risk, and his country's relationship with big brother. A good heart indeed.http://civitas.org.uk/newblog/2009/08/one-small-step-for-a-convicted-terrorist-one-giant-blunder-for-a-country/Hardly anything to win, so much to lose. Unexplainable!

And why would Megrahi give up on his appeal, if not being a condition for going home? Did he confess, then? Did he express remorse? Did he give any explanation for 'voluntarily' dropping it all?He should, shouldn't he? In case of a successful appeal - and we have yet to see anything expressing the thought that it would not be - it would have been so great for him and his country. So much to win, nothing to lose. But just like that, out of the blue, he dropped it, without a word.Unexplainable!

Or easy to explain. The appeal case going ahead would be a disaster of unimaginable proportions. The release was the way to avoid it, and a lesser evil.

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About Me

Robert Black QC FRSE is now Professor Emeritus of Scots Law in the University of Edinburgh. He has been a member of the Scottish Bar since 1972 and a QC since 1987. He has taken a close interest in the Lockerbie affair since 1993, not least because he was born and brought up in the town, and has published a substantial number of articles on the topic in the United Kingdom and overseas. He is often referred to as the architect of the Lockerbie trial at Camp Zeist in the Netherlands.

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